IN THE COURT OF THE I SENIOR CIVIL JUDGE
CITY CIVIL COURT, AT HYDERABAD.
Thursday the 16th day of June 2016
PRESENT: Smt. P. Mukthida I Senior Civil Judge
O.S. No.2183 of 2012,
O.S. No. 639 of 2014,
O.S. No.640 of 2014 and
O.S. No.726 of 2014
O.S. No.2183 of 2012
Between:
Dr. Habeebunnisa Sheema Rep.by her GPA holder and mother Yasmin Khan … Plaintiff A N D
1. Surgeel Bhavani
2. M/s. Fabulous Rep.by its Managing partner Sri. Surgeel Bhavani … Defendants
O.S. No. 639 of 2014
Between: Dr. Habeebunnisa Sheema Rep.by her GPA holder and mother Yasmin Khan … Plaintiff A N D
1. Surgeel Bhavani
2. M/s. Fabulous Rep.by its Managing partner Sri. Surgeel Bhavani … Defendants
O.S. No.640 of 2014
Between: Dr. Habeebunnisa Sheema Rep.by her GPA holder and mother Yasmin Khan … Plaintiff
A N D
1. Surgeel Bhavani
2. M/s. Fabulous Rep.by its Managing partner Sri. Surgeel Bhavani … Defendants
O.S.NO.726 OF 2014
Between:
Surgeel Bhavani Rep.by his registered GPA holder Markat Ali Bavani … Plaintiff <<2>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14
AND
Dr. Habeebunnisa Sheema Rep.by her GPA holder Yasmin Khan …Defendant
These suits came up for hearing on 26-4-2016 for disposal in the presence of Sri. Khaja Moizuddin, Advocate for the plaintiff in suits O.S.No.2183 of 12, O.S.No.639 of 2014, O.S.No.640 of 2014 and defendant in O.S.No.726 of 2014 and of Sri. R. Umender Kumar,
Advocate for defendants in O.S.No.2183 of 2012, O.S.No.639 of 2014,
O.S.No.640 of 2014 and plaintiff in O.S.No.726 of 2014 and the
matter having been heard and stood over for consideration till this day, the Court delivered the following :-
C O M M O N J U D G M E N T
O.S.No.2183 of 2012 is filed by the plaintiff through her GPA
holder/mother seeking eviction of defendants and for recovery of vacant possession of schedule property admeasuring 1165 sq.ft being the ground floor premises in municipal No.5-9-240 situated at Abids
Road, Hyderabad and for mesne profits @ Rs.50,000/- per month from the date of suit till the date of delivery of possession.
The plaintiff in O.S.No.2183 of 2012 has also filed O.S.No.639 of 2014 (original no. 2241 of 2012) against the same defendants for perpetual injunction to restrain the defendants and their men from sub-letting the suit schedule property, which is the same in
O.S.No.2183 of 2012, in favour of third parties and from changing
their business other than M/s.'Fabulous'. She has also filed O.S.
No.640 of 2014 (original no.1198 of 2013) against the same defendant to restrain the defendants and their men from interfering in or over the schedule property, which is part and parcel of ground floor <<3>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 premises ATM space admeasuring about 5 ft x 15 ft covered by municipal No.5-9-240 situated at Abids Road, Hyderabad. The defendant no.1 in all the above suits filed O.S. No.726 of 2014 against the plaintiff to direct her to register lease deed for a period of 10 years in respect of schedule shop situated at ground floor admeasuring 1165 sq.ft covered by municipal No.5-9-240 admeasuring 1165 sq.yards situated at Abids Road, Hyderabad.
A common trial was conducted by clubbing all the above suits and evidence was adduced in O.S. No.2183 of 2012.
For the sake of convenience and brevity, the pleadings in O.S.
No.2183 of 2012 are being set out, in brief, and they cover most of the pleadings in the other suits. The parties are arrayed as described in
O.S. No.2183 of 2012.
2. The brief case of plaintiff, who is represented by her GPA holder and her mother is that:
(a) She is the owner and defendants are tenants of ground floor premises admeasuring 1165 sq.ft covered by municipal No.5-9-240 situated at Abids Road, Hyderabad. The defendant became her tenant in respect of ground floor and first floor in municipal No.5-9-240, total admeasuring 2,700 sq.ft situated at Abids Road by virtue of registered lease deed document No.3504 of 2005, dt. 28-9-2005 at a monthly rent of Rs.40,000/- for the purpose of running business under the name and style of “Fabulous”, for a period of 5 years. The rent was payable on or before 5th of every succeeding English calendar month and the tenancy started from 1-4-2005 and has expired on 31-3-2010 by efflux of time. After expiry of three years and within five years of original tenancy period, the defendants failed to pay the enhanced <<4>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 rent @ 5% and they have also not paid Rs.1000/- towards maintenance charges and thus violated Clauses 5 and 6 of the lease deed dt. 28-9- 2005. Though the defendant deducted TDS amount on or before 31st
March every year, they did not furnish certificates to the plaintiff.
(b) On repeated requests of defendants and on their request letters for returning the first floor premises admeasuring 1350 sq.ft and part of ground floor premises obtained by them under aforesaid registered lease deed and as per undertaking letter, the defendant surrendered the first floor portion and part of ground floor portion through a registered Deed of Surrender of lease, dt. 21-3-2011 registered as document No.574 of 2011. The property surrendered by defendants was the entire first floor admeasuring 1350 sq.ft and staircase portion of 4 ft x 22 ft leading to the first floor in premises and ATM space of 5 ft x 15 ft in ground floor of premises bearing municipal No.5-9-240 and the defendants retained the area of ground floor admeasuring 1165 sq.ft, for which rent was fixed @ Rs.22,500/- per month from Rs.40,000/- per month and plan was annexed to the
Surrender deed. The defendants have paid rent through cheques but they bounced several times and they tendered apology and requested the plaintiff to present them again. Several times they did not pay rents to the plaintiff in time and became problematic and intentionally withheld rents for five months and thus, they committed willful default in payment of rent from August 2012 onwards. They have violated the terms and conditions of the lease deed.
(c) The plaintiff came to know through reliable sources that the defendants were trying to sub-let a portion in their occupation as tenants in favour of third parties without her consent and therefore, <<5>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 she was constrained to file the suit in O.S. No.2241 of 2012 on the file of III Junior Civil Judge, City Civil Courts, Hyderabad for perpetual injunction restraining the defendants from sub-letting the property to third parties. The defendants have also attempted to interfere in to
ATM space and she took steps to that effect.
(d) The defendants had paid a sum of Rs.7,50,000/- towards interest free refundable security deposit through D.D. on 4-4-2005 and they also paid advance rent of Rs.5,00,000/- in addition to the security deposit. The advance rent has been adjusted towards monthly rent from October 2005 to January 2009 @ Rs.12,500/- per month and that apart, even after full recovery of advance rent of Rs.5,00,000/-, the defendants continued to deduct rent from February 2009 to
September 2009 @ Rs. 12,500/- per month resulting in excess recovery of Rs.1,00,000/-, for which she has reserved her right to recover the said amount from the defendants. In view of the said facts and circumstance, she was not willing to continue the tenancy of defendant; as such got issued a notice dt. 18-10-2012 through her counsel by registered post acknowledgement due determining the lease in favour of defendants and calling upon the latter to vacate the schedule property and terminated the tenancy from 30-11-2012. She had also stated in that notice that possession of the defendant would be unlawful and that they are liable to pay damages @ Rs.50,000/- per month if they failed to deliver and also to pay arrears of rent up to date but the defendants failed to comply despite receiving the notice and therefore, she was constrained to file the instant suit for ejectment, arrears of rent and for mesne profits.
3. The defendant filed written statement opposing the suit and <<6>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 contending that:
(a) The plaintiff is the owner and defendant are tenants of schedule premises admeasuring 1165 sq.ft, having entered into possession by virtue of registered lease deed dt. 28-9-2005 on a monthly rent of Rs.40,000/- for the purpose of running ready-made garments business in the name and style of “M/s. Fabulous” for a period of five years. As per Clause-4 of the lease deed, the lease shall be renewable for further 10 years at the option of lessee, i.e., defendant, and should be registered at the cost equally shared by plaintiff and defendants. After expiry of lease, there was an understanding between the plaintiff and defendants and plaintiff permitted them to continue in the suit property for further 10 years and therefore, the question of termination of tenancy does not arise and the plaintiff has no right to terminate tenancy during its subsistence, either on 31-3-2010 or on any date. The allegations of plaintiff that they did not pay maintenance charges and failed to pay enhanced rent at 5% are all false. The plaintiff has nothing to do with payment of maintenance charges and it is between defendants and association of complex and even otherwise, there are regular and punctual in payment of maintenance to the concerned person. The allegation of plaintiff that they violated Clauses 5 and 6 of the lease deed and that they failed to furnish TDS certificates to the plaintiff and that they expressed intention to surrender first floor premises and part of ground floor are false. In the year 2011, the plaintiff visited the defendants' office and after long discussion, both of them came to conclusion that the defendants shall surrender a part of ground floor and first floor premises and continue to retain the area of ground floor <<7>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 admeasuring 1165 sq.ft for 10 years and the rent fixed was
Rs.22,500/-. As per that understanding, they surrendered the first floor and part of ground floor vide registered Surrender deed document No.574 of 2011, dt. 21-3-2011. They have been paying rent through cheques but the allegation that the cheques bounced several times is false. They have requested the plaintiff to accept the rent several times but the latter did not receive the rent cheques sent to her with mala fide intention to brand them as willful defaulters in payment of rent. The plaintiff has failed to explain the source of information that they were trying to sub-let the schedule property to third parties. The plaintiff leveled all false and baseless allegations against them only to vacate them from the suit property. The filing of
O.S. No.2241 of 2012 by the plaintiff on the file of III Junior Civil
Judge, City Civil Court, Hyderabad for perpetual injunction is
admitted but they deny the allegation that they attempted to interfere with the possession of plaintiff over ATM space. They admit payment of interest free refundable security deposit of Rs.7,50,000/- and advance rent of Rs.5,00,000/- but they deny the allegation that the advance rent of Rs.5,00,000/- was adjusted in monthly rent. They did not receive any notice dt. 18-10-2012 as alleged by the plaintiff. They are lawful tenants and therefore, payment of damages does not arise and as the notice was not served upon them, the question of giving reply notice does not arise. Contending that there was no cause of action and no valid reasons to file the suit and that they are doing ready made garments business since last more than seven years and gained reputation and goodwill in the market, the defendants prayed the Court to dismiss the suit with exemplary costs.
<<8>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14
O.S. No. 639 of 2014
O.S. No.639 of 2014 is filed by the plaintiff with substantially the
same pleadings as above and sought injunction to restrain the defendants from sub-letting the same schedule property as in O.S.
No.2183 of 2012, i.e, ground floor premises admeasuring about 1165 sq.ft in municipal No.5-9-240, to third parties. She further pleaded that the defendants, with help of unsocial elements, tried to sub-let the schedule property on 2-10-2012 and the same was resisted with the help of neighbours and family members of plaintiff.
The pleadings of defendant in written statement are also substantially the same as pleaded in the suit above. They further pleaded that the plaintiff failed to explain the source of her information that there were trying to sub-let the suit schedule property to third parties and alleged that the plaintiff created the date 2-10-2012 for the purpose of the suit and that no incident took place on the said date as alleged.
O.S.No.640 of 2014
The plaintiff has filed O.S. No.640 of 2014 with same pleadings as in O.S. No.2183 of 2012 and further pleaded that on 10-6-2013 the defendants attempted to interfere in her possession over the schedule property, which is part and parcel of the ground floor ATM space admeasuring about 5 ft x 15 ft covered by municipal No. 5-9-240, and that the plaintiff's father and others resisted the said attempt but the defendant along with unsocial elements again tried to interfere in her possession on 19-6-2013, which was again resisted with the help of neighbours and family members of plaintiff. The plaintiff referred to filing O.S.No.2183 of 2012 and 2241 of 2012 (O.S.No.639 of 2014) in <<9>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 the plaint of this suit.
The defendants have opposed the suit with similar pleadings as stated in the written statements in above suits and further pleaded that they have taken lease of the shop vide registered document
No.3504 of 2005 not only for the purpose of running a ready made garments shop but they can also do business as per Clause 1 of the lease deed including garments business. They further pleaded that:
the plaintiff has violated Clause No.8 of Surrender deed document
No.574 of 2011, dt. 21-3-2011 wherein the plaintiff was permitted to take 4 feet x 22 feet in the ground floor for the purpose of staircase leading to the first floor and for ATM machine 5 feet x 15 feet in front of the ground floor premises door No.5-9-240 and they agreed in the said deed that there will be an 8 ft wide clear passage leading to the ground floor, i.e., for defendant's shop but the plaintiff acquired 5 ft 11 inches, which is almost 6 x 22 ft, in the ground floor for staircase lead to the first floor and thus, violated the terms of clause No.8. The plaintiff assured them that she will not use the ATM space 5 ft x 15 ft as she had taken 5 ft x 11 inches instead of 4 ft for stair case and assured them that the ATM space would be free for access to their shop. The surrender deed was executed on 21-3-2011 but the plaintiff has demanded the ATM space after lapse of more than two years.
Contending that no incident took place on 10-2-2013 or 19-6-2013 or on any other date, the defendants prayed the Court to dismiss the suit.
O.S. No. 726 of 2014
The defendants filed O.S. No.726 of 2014 against the plaintiff for the relief of specific performance to direct her to register a lease deed <<10>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 for a period of 10 years in respect of ground floor shop admeasuring 1165 sq.ft in municipal No.5-9-240 and if she failed to register the same, the Court be pleased to register it.
The case of plaintiff/(defendant) is that: the defendant(plaintiff) is the owner of schedule property and they were inducted into possession as tenants on 1-4-2005 by virtue of lease deed dt. 28-9- 2005 registered vide document No.3504 of 2005 in respect of ground and first floor admeasuring 2,700 sq.ft on a monthly rent of
Rs.40,000/-. The terms and conditions of said registered lease deed in
Clause No.1 on page 2 are that the lessee has approached the lessor to let out the schedule premises for establishing a mall dealing in the business of ready made garments, textiles, cosmetics, footwear, music shop, cafeteria, gifts, novelties, etc. under the name and style of “FMF”. As per clause No.4 on page 3, the lease period shall be for five years and renewable for a further 10 years period at the option of lessee and the same will be registered at the cost equally shared by lessor and lessee. As per clause no.11 of that deed, the lessee is entitled to carry on business for the sale of ready made garments, etc.
in his individual capacity as a partnership firm or as a company; however, the lessee alone shall be responsible for payment of monthly rent of the said premises on behalf of whatever business, firm or companies that will be functioning in the leased premises. As per
Clause No.18 on page 7, the lessee is empowered to lease the demised premises or any portion of it to any of its associate concerns to carry on business as and when required as sole and absolute occupant without any hindrance or disturbance from the lessor or any one claiming under him. After taking the schedule property, he started <<11>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 running a ready made garments business in the name and style of “M/s. Fabulous”. He sustained heavy loss in the year 2013 and therefore, he changed his business and has been doing business of footwear on the date of filing the suit under the name “Foot Wings”,
Stockist “Fabulous”, as the plaintiff can change as per clause mentioned in the registered lease deed. Before expiry of lease period, he approached and requested the defendant to register a lease deed for extended period as per the terms of original lease deed but the defendant has postponed the matter upto March 2011 and in the said month, when he approached again and requested the defendant, the latter asked him to surrender the first floor as she wanted to let out the same to State Bank of India. As per the request of defendant, he surrendered the first floor premises admeasuring 1350 sq.ft and front portion of ground floor, i.e., right side of the shop 4 feet x 22 feet for staircase to first floor and 5 feet x 15 feet at left side of shop for the proposed ATM machine through Surrender lease deed registered vide document No. 574 of 2011,dt. 21-3-2011 and continued as lessee of ground floor admeasuring 1165 sq.ft. Though he has requested the defendant several times to execute lease deed for further 10 years from the date of expiry of original lease deed, the defendant postponed the matter on one or the other pretext and thereafter, filed false suit in O.S. No.2183 of 2012 for his eviction on several grounds, one of the grounds being that he continued as lessee of the said shop after expiry of period of lease. He has pleaded in his written statement in that suit that he continued to be in possession as lessee for further 10 years as per clause 4 of the lease deed at his option with the knowledge and consent of the defendant and that the <<12>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 defendant has reduced the monthly rent from Rs.40,000/- to
Rs.22,500/-. The defendant therein gave her consent to retain lease of the ground floor from 1-12-2010 as per clause 2 of the Surrender deed document No.574 of 2011, dt. 21-3-2011 but she has taken a false plea of expiry of lease deed. He got issued a legal notice dt. 16-12- 2013 requesting her to come forward to register a deed of lease in respect of the schedule property, which was served upon the defendant and she gave a false reply and failed to comply with the notice issued by him. Hence the suit.
3. The defendant/ (plaintiff) filed written statement opposing the suit and contending that: the suit is not maintainable as eviction proceedings vide O.S. No.2183 of 2012 are already pending. The suit has been filed on false and bogus ground as counter blast to O.S.
No.2183 of 2012 and to take undue advantage for prolong the litigation. The plaintiff has committed willful default in payment of rents and has violated the terms and conditions of lease and attempted to sub-let the schedule property in favour of third parties for which she had to file O.S.No.2241 of 2012 and O.S.No.1198 of 2013 (O.SNo.639 of 2014) and O.S.No.640 of 2013) to restrain the plaintiff from sub-letting the suit property and from interfering in respect of ATM space. The defendant has neither paid rents nor paid
TDS regularly nor vacated the schedule property and she has issued suitable reply to the notice of plaintiff. Contending as above, the defendant prayed the Court to dismiss the suit as barred by limitation.
4.Basing on the pleadings, the following issues were framed in the above suits:- <<13>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14
O.S.No.2183 of 2010:-
(1) Whether the plaintiff is entitled for eviction?
(2) Whether the plaintiff is entitled for arrears of rents?
(3) To what relief?
O.S. 639 of 2014:-
(1) Whether the plaintiff is entitled to the relief of perpetual injunction as prayed for?
(2) To what relief is plaintiff entitled in facts and circumstances of the case?
O.S. 6 40 of 2014:-
(1) Whether the plaintiff is entitled to relief of perpetual injunction?
(2) To what relief?
O.S. 726 of 2014:-
(1) Whether plaintiff is entitled for specific performance?
(2) Whether the suit is barred by limitation?
(3) Whether there is cause of action to file the suit?
(2) To what relief?
5.In view of common trial, the GPA holder of plaintiff in O.S.
2183/12, O.S. 639/14 and O.S. 640/14 is examined as PW1 and Ex. A1 to A7 are marked. The GPA holder of defendant no.1 is examined as
DW1 and Ex.B1 to B7 are marked. The defendants have also examined one Syed Nusrat Hussain as DW2 and Sohail Kotadiya as DW3.
All the issues framed in the above suits are being discussed together for the sake of convenience and to avoid repetition.
6.It is the case of plaintiff, who is represented by her GPA holder and mother PW1, that the ground floor and first floor of municipal
No.5-9-240 total admeasuring 2,700sft situated at Abids Road,
Hyderabad owned by her was leased out to the defendant No.1, who is <<14>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14
Managing partner of defendant No.2, through registered Lease deed document No.3504 of 2005, dt. 28-9-2005 on a monthly rent of
Rs.40,000/- for running business under the name and style of “Fabulous” for a period of five years, which ended on 31-3-2010 and that the defendant violated Clauses 5 and 6 of that lease deed and failed to pay enhanced rent @ 5% as agreed and that he has also not paid Rs.1,000/- p.m. towards maintenance charges. The plaintiff stated that the defendant executed registered Deed of Surrender document No.574 of 2011, dt. 21-3-2011 and surrendered the entire first floor admeasuring 1350 sq.ft., stair case portion of 4 ft x 22 ft leading to the first floor and ATM space of 5 ft x15 ft in the ground floor premises and has retained 1165 sq.ft. area of the ground floor, for which the rent was fixed at Rs.22,500/- per month. The plaintiff has alleged that cheques issued by the defendants towards rents were dishonored several times and he tendered apology and that the defendant did not pay rents to her in time many a time and thus, he became problematic and therefore, she was constrained to issue a legal notice dt.18-10-2012 terminating the tenancy of defendants from 30-11-2012 and demanding him to vacate the schedule property and to hand over vacant physical possession and also bringing to his notice that he would be liable to pay damages @ Rs.50,000/- per month if he failed to vacate and hand over possession and also to pay arrears of rent.
7.On the other hand, the consistent case of defendant is that though he tendered rents to the plaintiff, the latter did not receive the rent cheques only to harass and brand him as willful defaulter and that they are ready to pay entire arrears of rent and that the plaintiff <<15>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 has no right to terminate the tenancy during his subsisting lease, either on 30-11-2012 or on any date and that no notice was served upon him and therefore, the occasion to give reply notice did not arise.
8.The GPA holder of plaintiff is examined as PW1 and exhibited
Exs.A1 to A7, which are certified copies of registered Lease deed document No.3504 of 2005, Surrender Deed document No.574 of 2011 and registered GPA dt. 16-10-2010, apart from office copy of legal notice dt. 18-10-2012, three postal receipts, dt. 19-10-2012, served acknowledgment card and certified copy of caveat petition filed by the defendant.
9.With regard to payment of rents, the plaintiff has alleged that defendants have failed to pay the rents in time and that the cheques issued by them have bounced several times and that the defendant
No.1 tendered apology on coming to know of the dishonor. The GPA holder of defendant No.1 and his father/DW1 stated in his cross- examination that some cheques issued to the plaintiff were dishonoured but not due to his laches and that when the cheques were dishonoured, he used to pay the amount through Demand Draft along with bank statement stating that there was sufficient balance in his account. DW2 has stated that he has no knowledge whether most of the cheques issued by the defendant were dishonored and DW3 stated that to his knowledge only one cheque bounced due to the fault of bank. DW3 is manager of DW1. The plaintiff has not produced cheque return memos nor it was suggested to DW1 that the cheques were dishonored only due to his fault. The learned counsel for defendants argued that only because the cheques were not <<16>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 dishonored due to fault of DW1, the plaintiff did not initiate any action against him for such dishonor.
10.The plaintiff has also alleged that the defendants have failed to pay maintenance charges of Rs.1,000/- per month and that they have not paid the enhanced rent at 5% as agreed and thus, violated Clause 5 and 6 of the lease deed dt. 28-9-2005. A perusal of Ex.A1 lease deed reveals that the defendant has agreed that they shall be upward enhancement of monthly rent by 5% on yearly basis commencing from the beginning of fourth year of tenancy and that the lessee agreed to pay Rs.1,000/- per month towards maintenance charges including monthly water supply charges. DW1 has stated in his cross- examination that he paid maintenance charges of Rs.1,000/- per month as stipulated in Ex.A1 lease deed for a period of one year only and thereafter did not pay the charges, as the plaintiff did not provide any amenities to the schedule property but he did not give any notice in writing to the plaintiff demanding her to provide amenities. He further stated that he has orally asked the plaintiff in that regard and that he did not receive any notice from the plaintiff for the specific purpose of claiming maintenance charges from him. DW1 has admitted that he did not pay enhanced rent before surrender and stated that he had paid agreed rent. Though the plaintiff alleged that defendant is in arrears of rent and that he did not pay maintenance charges and enhanced rent, she did not seek any relief to recover the alleged arrears, maintenance charges and enhanced portion of rent in any of the suits filed by her. However, PW1 stated that she has been receiving rents from the defendant under protest and that her protest was endorsed only in her pleadings and not in any other documents.
<<17>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14
11.The plaintiff has also pleaded that the defendant No.1 has attempted to sub-let the schedule premises and to make structural alterations in the ground floor portion in his possession and therefore, she has filed the suit in O.S.No.2241 of 2012 which was renumbered as O.S. No.639 of 2014. The plaintiff has shown the date of cause of action as 2-10-2012 but has not preferred to state to whom the defendant No.1 tried to sub-let the schedule premises by taking good will amount. Similarly, though the plaintiff pleaded that she, with the help of neighbours and passers by and with the help of her family members, resisted the attempt of defendant No.1 to sub-let the property, she has not produced oral evidence of any of the persons who aided her in preventing the defendant from sub-letting the property. An Advocate Commissioner was appointed vide orders in I.A.
No.299 of 2013, dt. 11-7-2013 for recording physical features of the schedule property in O.S. No.639 of 2014 and the commissioner gave report that there was mezzanine floor inside the door on the back side of the shop and he took photographs of the same and submitted to the
Court. When PW1 was asked about the commissioner's report, she has stated that she did not visit the site when advocate commissioner executed the warrant but her husband was present and he told her that the commissioner noted down the structural changes which were not there when they leased out the property. She further stated that she has no proof that such structures were not present before leasing out. PW1 has further testified that she cannot identify the structural changes noted by the advocate Commissioner as she did not participate in the Commissioner's proceedings at the site. However, she denied the suggestion that no structural change was made by the <<18>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 defendant. This evidence of plaintiff reveals that she has no personal knowledge of additions or alterations made by defendant in the schedule property and she has failed to examine her husband in support of her claim.
12.The learned counsel for defendant filed a memo of objections to the Commissioner's report stating that the plaintiff's father, who has visited the site on the date of execution of warrant, was not a party to the suit and that the Commissioner has not given any notice to the
GPA holder of the plaintiff/PW1, that the warrant was executed in the absence of plaintiff and her GPA holder and that the advocate
Commissioner has gathered evidence which is not permissible as per law and therefore, the report should be rejected. The learned counsel further stated in the memo that defendant would take steps for examining the Advocate Commissioner. However, the advocate commissioner was not examined either by the plaintiff or by the defendant. Strangely, though the advocate commissioner has noted down in his report that a mezzanine floor was found in the back side of shop in the possession of defendant, no question was put to DW1 as to alteration or additional structures in the schedule property and it was only suggested to him that a commissioner was appointed for noting down the physical features of schedule property, which he admitted. DW1 denied knowledge of the Commissioner's report and stated that he did not make any additional constructions and hence, there was no necessity to obtain plaintiff's permission.
13.A perusal of Ex.A1 lease deed reveals that as per Clause 12, the lessee shall not make any additions or alterations without written permission of lessor and that he shall not claim any amount <<19>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 whatsoever from the lessor even if such additions or alterations are done with the consent of lessor. However, in Clause 21 of Ex.A1 it was recited that the lessee is at liberty to make suitable additions in the schedule property to suit their requirement without changing or effecting the basic structure of the building at their own costs. A perusal of the photographs filed by Advocate Commissioner, which is part of the record, reveals that a temporary arrangement was made in the shop for the purpose of stocking foot wear. DW1 was cross- examined after the Commissioner filed his report. The omission of plaintiff to pose any questions to DW1 with regard to alleged alterations or structures noted down in the report lead to the inference that the plaintiff did not consider those structures as effecting the basic structure of the building and hence, the same would fall under Clause 21 of Ex.A1. Above all, the plaintiff herself has no personal knowledge whether the mezzanine floor appearing in the photographs is an additional structure or not.
14.The plaintiff has also alleged that the defendant has interfered in the ATM space of 5' x15' which the defendant has surrendered under Ex.A2 Surrender deed. The plaintiff has shown the dates of interference as 10-6-2013 and 19-6-2013 and pleaded that his attempts were resisted with the help of neighbours, passers by and by family members. It is strange to find that though O.S. 640 of 2014 (originally O.S.No.1198 of 2013) was filed seeking injunction to restrain the defendants from interfering in or over the ATM space showing the dates of cause of action arose as 10-6-013 and 19-6-2013, she has pleaded about interference of defendant in ATM space even in
O.S. No.2183 of 2012 filed on 28-12-2012, i.e., long before the
<<20>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 attempts of defendant took place, i.e., 10-6-2013 and 19-6-2013. The plaintiff has not preferred to examine any of her neighbors or family members to prove the alleged interference by the defendants in ATM space. She stated in cross-examination that after surrendering the
ATM space, the tenants put up show cases but the same was not mentioned in the plaint as it has happened subsequently and that she noticed the same when she went to the shop as they were visible even
before entering the shop which has a glass door. Surprisingly, PW1
testified in her cross-examination that the ATM space was not in her possession as on the date of filing O.S. 640 of 2014 and even after surrender by the defendant but denied the suggestion that there was no cause of action for filing the suit. DW1 was not questioned anywhere about alleged interference in the ATM space despite filing the suit in that regard and despite seeking injunction against the defendant from such interference. All these speak out the truth in the cause of action pleaded for this suit.
15.The plaintiff has pleaded that she wanted to terminate tenancy of the defendant as he became problematic. PW1 deposed that she wanted the defendant to vacate the schedule property on several issues. A perusal of Ex.A4 legal notice reveals that the tenancy was terminated as defendant did not pay the rents regularly in time and because he violated the terms of lease in paying the maintenance charges and enhanced rent. The plaintiff has sought eviction of defendant from the schedule property and also damages @
Rs.50,000/- per month for being in possession of the schedule property after 30-11-2012 as per the quit notice Ex.A4 but she has not sought any relief to direct the defendant to pay the arrears of rent or <<21>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 the maintenance charges or the portion of enhanced rent which has remained unpaid, for the reasons best known to her. Hence, I find that the issue no. 2 in O.S. No. 2183 of 2012 has been wrongly framed.
Though DW1 has admitted that he has not paid maintenance charges and enhanced rent and that he had paid only agreed rent, the conduct of plaintiff in not amending the plaint to recover the said amounts lead to the conclusion that the plaintiff might have waived her right to recover the said amounts from defendant.
16.The suit in O.S.No.2183 of 2012 has been filed after issuing notice under Ex.A4 giving 15 days time to the defendant by terminating the tenancy and asking him to vacate the premises by 30- 11-2012. The defendant has refused receipt of notice under Ex.A4 and when he was confronted with Ex.A6 acknowledgment card, he stated that Ex.A6 contained his address but he did not remember who received Ex.A4 notice and whether he gave any reply to it. However, he admitted that his address in Ex.A4 and address of defendant no.2 are correct. Thus, the plaintiff could prove that Ex.A4 notice was served upon the defendant.
17.Now, it has to been seen whether the plaintiff is entitled to recover possession of the schedule property from defendant as pleaded in O.S. No.2183 of 2012 or not. The defendant opposed the suit of plaintiff on the ground that the plaintiff is not entitled to issue tenancy termination notice since it was recited in Ex.A2 Surrender deed that after he surrendered the first floor portion and part of ground floor portion to the plaintiff, he has retained the schedule property, which is ground floor portion admeasuring 1165 sq.ft for which he has been paying agreed rent of Rs.22,500/- per month.
<<22>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14
18.According to the plaintiff, Ex.A1 Lease deed has expired by efflux of time since the lease was only for a period of 5 years and that no fresh lease deed was executed between them to extend the period of lease. The plaintiff has treated the defendants as monthly tenants and their tenancy to be oral and issued quit notice under Ex.A4 giving 15 days time as per Section 106 of the Transfer of Property Act.
There is no dispute that Ex.A2 was executed between both the parties.
A perusal of Clause 4 of Ex.A2 reveals that the lessee has retained the ground floor portion and as per Clause 5 therein, it was agreed that all the other terms and conditions of Ex.A1 Lease deed will be the same and applicable for the ground floor of schedule premises No.5-9-
240. A plain reading of Ex.A2 makes it clear that the plaintiff has agreed to let the defendant No.1 retain the schedule property ground floor subject to the same terms and conditions as recited Ex.A1 Lease deed. Clause 4 of Ex.A1 lease deed recites that the initial lease period shall be for 5 years and renewable for a further 10 years period at the option of lessee and the same will be registered at the cost equally shared by lessor and lessee. A combined reading of Ex.A1 and Ex.A2 makes it apparent that by execution of Ex.A2, the plaintiff has leased the schedule property ground floor to the defendant for other 10 years period as per the perms recited in Ex.A1 and therefore, the contention of plaintiff that the tenancy of defendant is only oral and that she was entitled to issue Ex.A4 termination notice cannot be accepted. Though the plaintiff has alleged that she is entitled to terminate the tenancy as defendant has violated Clauses 5 and 6 of
Ex.A1, there is no recital in Ex.A1 which entitles the plaintiff to terminate the tenancy only on that ground abruptly and she could <<23>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 have recovered the enhanced rent recited in Clause 5 from the defendant, had she pleased so.
19.The defendant has filed O.S. No.726 of 2014 relying upon Ex.A1 and Ex.A2 to direct the plaintiff to register lease deed for a period of 10 years in respect of the schedule property alleging that the plaintiff has not come forward to execute registered lease deed though he was entitled for extension of lease by virtue of Clause 4 of Ex.A1. He pleaded and deposed that before expiry of lease period, he approached and requested the plaintiff to register a lease deed for extended period as per the terms of original lease deed but the plaintiff has postponed the matter upto March 2011 and in the said month, when he approached again and requested the plaintiff, the latter asked him to surrender the first floor as she wanted to let out the same to State Bank of India and as per her request, he surrendered the first floor premises admeasuring 1350 sq.ft and front portion of ground floor, i.e., right side of the shop 4 feet x 22 feet for staircase to first floor and at left side of shop 5 feet x 15 feet for the proposed ATM machine through Surrender lease deed registered vide document No. 574 of 2011,dt. 21-3-2011 and continued as lessee of ground floor admeasuring 1165 sq.ft. He further pleaded and deposed that though he has requested the plaintiff several times to execute lease deed for further 10 years from the date of expiry of original lease deed, she postponed the matter on one or the other pretext and thereafter, filed false suit in O.S. No.2183 of 2012 for his eviction.
20.Despite the aforesaid pleadings and evidence of DW1 that he had approached the plaintiff several times and requested her to execute registered lease deed, not even a single question was posed <<24>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 to DW1 as to when he approached her for such extension. It was only suggested to him that the plaintiff did not execute any agreement for extension of lease and the said suggestion is against the contents of
Ex.A1 and Ex.A2. Though the defendant did not give any written notice to the plaintiff calling upon her to execute lease deed soon after termination of lease under Ex.A1, his unrebutted pleadings and evidence of his readiness coupled with the permission given by plaintiff to defendants to retain possession of schedule property under
Ex.A2 even after expiry of the lease under Ex.A1 and subject to the terms and conditions mentioned therein, gave a right to the defendant to seek extension of lease at his option. The defendant has issued the statutory notice required prior to filing this suit under Ex.B3 and the same was served upon the plaintiff through PW1 under Ex.B5, to which she has issued Ex.B6 reply. For the afore said reasons, I find that the defendant could prove his claim to get a registered lease deed from the plaintiff for extension of lease by 10 years.
21.The plaintiff has produced only certified copies marked as Ex.A1 to A3 and it was elicited in her cross examination that she has original documents with her but has not produced the same since she filed certified copies. The learned counsel for defendant has specifically confronted to PW1 the plaint pleadings in O.S.No.639 of 2014 and
O.S.No.640 of 014 wherein she undertook to produce the originals at
the time of trial. Though PW1 admitted the same and though the learned counsel for defendant had even deferred cross-examination to enable PW1 to produce the original documents, she did not bring them. PW1 was cross-examined in detail on Ex.A3 and it was even suggested to her that the plaintiff was not in India as on the date of <<25>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 execution of Ex.A3 but even then PW1 did not prefer to produce the original GPA which is in her possession. Section 64 of the Evidence
Act mandates that documents must be proved by primary evidence subject to exceptions. Section 65 provides for cases in which secondary evidence may be given of the existence, condition or contents of a document. Though Section 77 stipulates that certified copies may be produced in proof of contents of public documents and though section 79 provides for a presumption as to genuineness of certified copies, execution of document can be proved only by producing the original document as held by Hon'ble Apex Court in
Nani Bai v. Gita Bai Kom Rama Gunge [1959] 1 SCR 479 wherein it was observed as follows :
'Those sale deeds themselves were the primary
evidence of the interest sold. If those saledeeds
which are said to be registered documents, were not
available for any reasons, certified copies thereof
could be adduced as secondary evidence, but no
foundation has been laid in the pleadings for the
reception of other evidence which must always be of
a very weak character in place of registered
documents evidencing those transactions'.
22.It is not the case of PW1 that she is not in possession of the original Lease deed and original Surrender deed but she did not produce them deliberately. She has not even produced the original
GPA executed by her daughter, the plaintiff herein, though she filed all three suits on behalf of the plaintiff. It was suggested to PW1 that the schedule property is not mentioned in GPA document/ Ex.A3 to which she has denied. A perusal of Ex.A3 reveals that the schedule property therein consists of the entire building with premises bearing no.5-9- 240 consisting of ground, first and second floors. Applying the ratio in the aforesaid decision, it is apparent that though Ex.A1 to A3 were <<26>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 marked through PW1 and though the contents in Ex. A1 and A2 are not disputed by the defendant, the same are of no avail to the plaintiff as PW1 violated the provisions of Section 64 of the Evidence Act and the certified copies Ex.A1 to A3 produced by her cannot be considered and they cannot be relied upon by her in proof of their contents and execution and it should be presumed that the plaintiff has not produced any document in that regard.
23.On the other hand, the defendant has produced certified copies of registered Lease deed and Surrender deed marked as Ex.B1 and B2 and from the evidence of PW1, it is apparent that the originals of
Ex.B1 and B2 (which are same as Ex.A1 and A2 respectively) are in the possession of PW1 and hence, he has to necessarily rely on them.
However, DW1 has also failed to produce the original GPA executed by defendant no.1 but he was not questioned about the whereabouts of original GPA in his cross-examination by plaintiff.
24.Though the plaintiff has sought prohibitory injunctions against the defendants to restrain them from sub-letting the suit schedule property and also from interfering in or over the ATM space of 5'x15' feet, the plaintiff has failed to prove the cause of action pleaded in those suits and her entitlement for injunctions against the defendants in that regard. As already observed above, the plaintiff failed to produce evidence of any of the persons with whose assistance she had resisted the attempts of interference and sub-letting by the defendant and she did not produce at least the evidence of plaintiff's father, who is said to have participated in the Commissioner's proceedings on her behalf. Hence, I find that the plaintiff could not prove her entitlement for the reliefs sought in O.S.No.639 of 2014 and O.S.No.640 of 2014.
<<27>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14
25.The learned counsel for plaintiff argued that the defendants have admitted jural relationship with plaintiff as their landlady and further admitted the quantum of rent and extent of area leased out and that they have also surrendered part of stair-case and that they have received Ex.A4 legal notice as evidenced by Ex.A6 acknowledgement card and that the defendants failed to pay arrears of rent for four months and therefore, the plaintiff is entitled to recover possession of schedule property in the eviction suit. The learned counsel further argued that the defendant has changed the nature of property despite conditions in the lease deed and that the
Advocate Commissioner filed report in O.S. 639 of 2014 stating that vast changes were done by defendant and therefore, that suit has to be decreed. The learned counsel further argued that temporary injunction was granted in favor of the plaintiff in O.S. 640 of 2014 to restrain the defendants from interfering in the ATM space and so the plaintiff is entitled for decreeing that suit. With regard to O.S. No. 726 of 2014, the learned counsel submitted that the defendant has not filed any document to show that the lease is valid till 2020 and that the defendant is entitled for specific performance.
26.Denying the claim of plaintiff, the learned counsel for defendants argued that this Court has to determine whether the plaintiff has proved the GPA of PW1 or not and whether the entries therein entitle PW1 to continue the suit proceedings and that though the plaintiff has claimed mesne profits, no issue has been framed for such relief. The learned counsel also argued that GPA can depose only after having personal knowledge and that as per Ex.A3 GPA, the entire premises number was given as 'leased out presently to Co- <<28>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14
Optex and BEL' without showing boundaries of each tenant and that such GPA can be used only for Co-Optex and BEL and as the tenants in GPA are not before the Court, the GPA is not valid for the suits filed on behalf of the plaintiff. The learned counsel further argued that the clauses in GPA do not show that PW1 is entitled to depose on behalf of the plaintiff and submitted that as per Clause 4 in Ex.A1, the initial lease period is 5 years renewable for 10 years at the option of lessee and not of lessor, on equal cost of lessor and lessee and hence, the defendant is entitled for extension of lease. The learned counsel also argued that it is not the case of plaintiff that after expiry of the term under Ex.A1 the defendants vacated and delivered possession to plaintiff and that they were again inducted into possession at the time of execution of Ex.A2 and that the plaintiff has received rents from the defendants after expiry of lease under Ex.A1 without protest only because the parties intended to extend the lease and hence, the suit for eviction becomes infructuous. The learned counsel referred to
Clause 6 of Ex.A2 and argued that as per that clause, previous agreement has to be acted upon and by virtue of the recitals in Ex.A2, the defendant is a tenant of the plaintiff and as PW1 admitted in cross-examination that the contents of page 8 are true and correct, the suit for specific performance has to be decreed. The learned counsel further argued that no documents are filed by the plaintiff with regard to the relief of injunctions claimed and no further evidence was adduced in support of such claim and hence, the suits for injunctions have to fail.
27.The learned counsel for plaintiff relied upon the following decisions in support of his arguments:- <<29>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14
(i) Tapas Kumar Samanta v. Sarbani Sen and another 2015 (5) ALD 48 (SC) - wherein the Hon'ble Apex Court found fault with the High Court for interference with the findings of fact by lower appellate Court and for entertaining the second appeal when relationship was the only dispute raised by defendant without disputing the other pleadings about personal necessity of plaintiff and non-payment of arrears of rent and when relationship was established from evidence.
(ii) Satish Khanna v. Kanduru Anuradha Reddy 2013 (5) ALD 719 (DB) - wherein the Hon'ble Court held that the very opening portion of Section 106 of T.P. Act makes it clear that a notice under it can be issued, if only the lease is not governed by any other arrangement between the parties and once there is a registered lease deed between the parties, it is axiomatic that their relation shall be governed by the condition stipulated therein and, at the most, quit notice in such cases can be after the period stipulated in the lease deed expired. The Hon'ble Court further held that mere existence of clause providing for renewal does not clothe lessee with right to seek renewal and receipt of rent, in terms of the lease deed, cannot be construed as expression of consent for renewal and the two are separate and distinct aspects; it is only when there is mutual agreement between the parties in this behalf that a renewal can come into existence.
(iii) Hazmer Infracon India Pvt. Ltd. v. V. Prabhakar Rao 2012 (2) ALD 25 - wherein the Hon'ble Court held that where the notice under Section 106 of T.P. Act was issued during <<30>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 the subsistence of lease, even if there is no fault of the tenant, it is liable to be evicted once the landlord demanded by issuing such notice. The Hon'ble Court further held that the prohibition that deposition of
GPA cannot be taken into account if the owner did not enter into witness box applies only when the acts and omissions are of the principal himself and it does not apply if the suit transaction itself was conducted or performed by the GPA under proper authority and in such case, the GPA can certainly speak to the acts pertaining thereto.
(iv) Pankaj Salva and another v. V. Vijay Lakshmi 2012 (3) ALD 26 - wherein the Hon'ble Court held relying on the judgment of Hon'ble Supreme Court in Shanti Devi v.
Amal Kumar Banerjee (1981) 2 SCC 199 that there is no necessity to issue notice under Section 106 of the
T.P. Act in case the lease was for a definite period and if the said period expired by efflux of time.
28.On scrutiny of the oral and documentary evidence on record and in view of the discussion made above, I find that the case-law relied upon by the learned counsel for plaintiff would have had a direct bearing on O.S. No. 2183 of 2012 had clauses 5 and 6 been absent in
Ex.A2, by virtue of which all the terms and conditions of Ex.A1 were retained after retention of schedule property by the defendant expressly. The defendant has been recognized as a lessee in Ex.A2 and therefore, he was not a tenant holding over by the date of issuance of
Ex.A4. Though Ex.A4 notice was issued after expiry of the term stipulated in Ex.A1, it cannot be treated as a quit notice under Section 106 of T.P. Act applying the ratio laid down in Satish Khanna v.
Kanduru Anuradha Reddy (supra) since the parties have themselves executed Ex.A2 incorporating such clauses, thereby recognizing the <<31>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14 possession of defendant over the schedule property as a lessee. For the same reasons, I find that the contention of plaintiff that the suit in
O.S. No. 726 of 2014 is barred by limitation cannot be accepted.
29.In view of the reasons stated above, I conclude that the defendants are entitled for specific performance sought in O.S. No.
726 of 2014 and that the suit O.S.No.2183 of 2012 filed by the plaintiff has to fail. Having regard to the aforesaid discussion, it is also apparent that the plaintiff has failed to prove her entitlement to seek injunctions against the defendants vide O.S. No. 639 of 2014 and 640 of 2014.
IN THE RESULT, the suit of the plaintiff in O.S.No.2183 of 2012,
O.S.No.639 of 2014 and O.S.No.640 of 2014 are dismissed without
costs. The suit in O.S.No.726 of 2014 is decreed, directing the defendant to execute a registered lease deed in favour of the plaintiff for a period of 10 years within two months and if she fails, the plaintiff is at liberty to get the same executed through due process of law. No costs.
Dictated to the Personal Assistant, transcribed and typed by her
corrected and pronounced by me in the open Court on this the 16th day of June, 2016 .
I Senior Civil Judge City Civil Court, Hyderabad
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:FOR DEFENDANTS: PW1: Yasmin khan DW1:Barkat Ali Bavani DW2: Syed Nusrat Hussain DW3: Sohail Kotadiya <<32>> OS's 2183/12, OS 639/14, OS 640/14 & OS 726/14
DOCUMENTS MARKED FOR PLAINTIFF
Ex.A1 : Certified copy of registered lease deed, dt. 28-9-2005 registered as document No.3504 of 2005.
Ex.A2: Certified copy of registered deed of Surrender of leased, dt.21-3-2011 registered as document No.574 of 2011 along with plaint.
Ex.A3: Certified copy of registered GPA, dt. 6-10-2000.
Ex.A4: Office copy of legal notice, dt. 15-10-2012.
Ex.A5: Original three postal receipt, dt.19-10-2012.
Ex.A6: Original acknowledgement card.
Ex.A7: Caveat petition.
DOCUMENTS MARKED FOR DEFENDANT
Ex.B1: Certified copy of lease agreement, dt. 28-9-2005.
Ex.B2: Certified copy of deed of surrender of lease, dt. 21-3-2011.
Ex.B3: Office copy of legal notice, dt.16-12-2013.
Ex.B4: Postal receipt, dt. 16-12-2013.
Ex.B5: Acknowledgement card, dt. 18-12-2013.
Ex.B6: Reply notice.
Ex,B7: Certified copy of GPA, dt.5-10-2005.
I Senior Civil Judge City Civil Court, Hyderabad